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Simon De anda, Jr v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


January 24, 2011

SIMON DE ANDA, JR.,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I.

PROCEEDINGS

Plaintiff filed this action on April 23, 2010, seeking review of the Commissioner's denial of his applications for Disability Insurance Benefits and Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on May 6, 2010, and May 12, 2010. The parties filed a Joint Stipulation on January 4, 2011, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II.

BACKGROUND

Plaintiff was born on July 13, 1958. [Administrative Record ("AR") at 81, 132.] He has a high school education, has received vocational training in welding, and has past relevant work experience as a welder, machine operator, night dispatcher, and manager. [AR at 35-36, 41-45, 140, 144, 168.]

On February 25, 2009, plaintiff protectively filed his applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging that he has been unable to work since February 1, 2005, due to lower back problems and anemia. [AR at 14, 81-82, 111-21, 132-34, 138-45.] After plaintiff's applications were denied initially, he requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 83-89.] A hearing was held on August 4, 2009, at which time plaintiff appeared without counsel and testified on his own behalf. A vocational expert also testified. [AR at 24-80.] On August 27, 2009, the ALJ found plaintiff not disabled. [AR at 11-21.] When the Appeals Council denied plaintiff's request for review of the hearing decision on February 16, 2010, the ALJ's decision became the final decision of the Commissioner. [AR at 1-4.] This action followed.

III.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV.

THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform his past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because he can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial gainful activity since February 1, 2005, the alleged onset date of disability.*fn1 [AR at 16.] At step two, the ALJ concluded that plaintiff "has the following severe impairments: history of syncope and dizzy spells, otitis media of the left ear, and lower back pain with moderate to severe osteoarthritis at L5-S1." [Id.] At step three, the ALJ concluded that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 17.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn2 to perform light work,*fn3 except that plaintiff cannot climb ladders, ropes, or scaffolds; can only occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; must be able to use a hand-held assistive device for prolonged ambulation; and cannot perform work that involves "concentrated exposure to hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions." [AR at 17.] At step four, the ALJ concluded, relying on the vocational expert's testimony, that plaintiff could perform his past work as a dispatcher. [AR at 19.] Alternatively, the ALJ continued his analysis to step five and concluded, relying on the vocational expert's testimony and the Medical Vocational Rules as a framework,*fn4 that plaintiff was able to perform other work existing in substantial numbers in the national economy requiring only a sedentary level of exertion. [AR at 19-20.] However, the ALJ also found that plaintiff could only perform other work until July 13, 2008, when plaintiff reached his 50th birthday, at which time the Medical Vocational Rules would require a finding that plaintiff was disabled. [AR at 20, citing Medical Vocational Rule § 201.14.] Nonetheless, the ALJ determined that the step-five application of Medical Vocational Rule § 201.14 was "moot," as the ALJ concluded that plaintiff was capable of performing his past relevant work at step four. [Id.] Accordingly, the ALJ found plaintiff not disabled. [AR at 20-21.]

V.

THE ALJ'S DECISION

Plaintiff contends that the ALJ erred in finding plaintiff able to perform his past relevant work. [Joint Stipulation ("JS") at 4.] As set forth below, the Court agrees with plaintiff and remands the matter for further proceedings.

PAST RELEVANT WORK

Plaintiff contends that the ALJ erred at step four of the sequential evaluation in concluding that plaintiff could perform his past relevant work as a dispatcher. [JS at 4-11.] Specifically, plaintiff contends that the ALJ erroneously relied on the vocational expert's testimony characterizing plaintiff's past work as that of a "Dispatcher, Motor Vehicle" under Dictionary of Occupational Titles ("DOT") No. 249.167-014, when plaintiff's testimony instead established that his past dispatcher work was that of a "Receiver-Dispatcher" under DOT No. 239.367-022, 1991 WL 672227. [Id.] Plaintiff further asserts that the difference between these two jobs is "material" as plaintiff's limitations prevent him from performing the full range of light work required of his past dispatcher job under DOT No. 239.367-022 either as he actually performed the job or as it is generally performed according to the DOT. [JS at 10-11.] Accordingly, plaintiff contends that it is necessary to continue to step five of the sequential evaluation and that he is thus entitled to a finding that he has been disabled since his 50th birthday on July 13, 2008, under Medical Vocational Rule § 201.14. [JS at 10-11, citing AR at 19-20 (the ALJ's alternative step-five finding).]

At step four, the ALJ must determine whether plaintiff's RFC allows him to return to his past relevant work. Lester, 81 F.3d at 828, n.5; 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Plaintiff has the burden of establishing that he is incapable of performing his past relevant work. 20 C.F.R. §§ 404.1512, 416.912; Barnhart v. Thomas, 540 U.S. 20, 25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). However, the ALJ must make findings of fact regarding plaintiff's RFC, the physical and mental demands and job duties required of plaintiff's past work, and whether plaintiff can return to his past relevant work "either as actually performed or as generally performed in the national economy," given plaintiff's limitations. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002); see Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). A claimant is typically the primary source for determining what past jobs the claimant has performed, as well as how those jobs were actually performed. See Social Security Ruling*fn5 82-62 ("The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level[,] exertional demands and non-exertional demands of such work."). A claimant's statements concerning his past work can come from a Vocational Report (SSA-3369 form)*fn6 properly completed by the claimant, or from the claimant's testimony at an administrative hearing. See Pinto, 249 F.3d at 845; SSR 82-42; SSR 82-61. When determining how a claimant's past job is generally performed, the ALJ can rely on the descriptions given by the Dictionary of Occupational Titles ("DOT") or a vocational expert. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).

A claimant is entitled to challenge an ALJ's classification of his past relevant work under the DOT. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986); see also, e.g., Goodenow-Boatsman v. Apfel, 2001 WL 253200, at *7 (N.D. Cal. Feb. 27, 2001) ("plaintiff may challenge the ALJ's classification of [his] past relevant work according to the DOT"). As the Administration's rulings recognize, "[a] particular job may or may not be identifiable in authoritative reference materials. The claimant is in the best position to describe just what he or she did in [past relevant work], how it was done, what exertion was involved, what skilled or semiskilled work activities were involved, etc. Neither an occupational title by itself nor a skeleton description is sufficient." SSR 82-41. If the ALJ "incorrectly categorize[s] [a claimant's] occupation under [a DOT] job title ..., then 'the description applicable to that category is irrelevant to the determination of the exertional capacities required in [his] former occupation.'" Villa, 797 F.2d at 798 (quoting Tingle v. Heckler, 627 F.Supp. 544, 545 (S.D. Miss. 1986)).

Plaintiff testified at the hearing concerning his past work experience as a welder and "dispatcher at a tow yard." [AR at 41-45.] In describing his dispatcher work, plaintiff explained that he worked in a "dispatch center," where he would "mostly answer phones and just send out the drivers to where the calls come in .... We work for AAA. ... Calls come in, and we send ... the guys out, and make sure they get there and stuff like that." [AR at 43.] Plaintiff explained that he would use telephones, rather than computers, and described his work as "really hectic" and "real stressful" due to "the volume that comes in of the calls." [AR at 42-43.] He also explained that he was required to "sit[] constantly" at his job to answer the phones [AR at 42, 44], and that he was unable to continue his dispatcher work because his back problem makes it difficult for him to sit for prolonged periods of time. [AR at 42, 71-72.] Plaintiff did not complete a Vocational Report (SSA-3369 form) to describe in detail the duties of his past work.*fn7

At the hearing, the vocational expert classified plaintiff's past dispatcher work under DOT No. 249.167-014. [AR at 67.] In response to a hypothetical question, in which the ALJ described a person with the same limitations outlined in the RFC determination described above, but with the additional limitation of being limited to a total of two hours of standing and/or walking in an eight-hour day, the vocational expert asserted that plaintiff could perform his past work as a dispatcher as he actually performed it or as it is generally performed according the DOT.*fn8 Notably, although the vocational expert correctly stated that DOT No. 249.167-014 is a sedentary job [AR at 67], she did not specifically state at what exertional level plaintiff actually performed his dispatcher job. [See AR at 67-69.] The vocational expert further testified that under the same hypothetical, plaintiff could perform a number of sedentary jobs existing in substantial numbers in the national economy. [AR at 70.] The vocational expert also clarified that a "two-hour standing and walking restriction" made the hypothetical limitations described by the ALJ "more sedentary than light." [AR at 69-70.] In the decision, the ALJ relied on the vocational expert's testimony that plaintiff's past work as a dispatcher was properly defined by DOT No. 249.167-014 and that plaintiff could perform that job, despite his limitations, both as he actually performed it and as it is generally performed in the national economy. [See AR at 19.]

The Court agrees with plaintiff's contentions that the vocational expert improperly characterized his past dispatcher work under DOT No. 249.167-014, and that the ALJ erred in relying on the vocational expert's testimony in finding plaintiff able to perform his past relevant work. The DOT provides the following definition for DOT No. 249.167-014, "Dispatcher, Motor Vehicle":

Assigns motor vehicles and drivers for conveyance of freight or passengers: Compiles list of available vehicles. Assigns vehicles according to factors, such as length and purpose of trip, freight or passenger requirements, and preference of user. Issues keys, record sheets, and credentials to drivers. Records time of departure, destination, cargo, and expected time of return. Investigates overdue vehicles. Directs activities of drivers, using two-way radio. May confer with customers to expedite or locate missing, misrouted, delayed, or damaged merchandise. May maintain record of mileage, fuel used, repairs made, and other expenses. May establish service or delivery routes. May issue equipment to drivers, such as handtrucks, dollies, and blankets. May assign helpers to drivers. May be designated according to type of motor vehicle dispatched as Dispatcher, Automobile Rental (automotive ser.); Dispatcher, Tow Truck (automotive ser.).

DOT No. 249.167-014. This job is classified as sedentary work under the DOT. Id. The DOT also provides the following definition for DOT No. 239.367-022, "Receiver-Dispatcher":

Receives and records requests for emergency road service from automobile club members, and dispatches tow truck or service truck to stranded vehicle: Answers telephone and obtains and records on road service card such information as name of club member, location of disabled vehicle, and nature of vehicle malfunction. Routes card to dispatch station, or relays information to service station or tow truck in motorist's vicinity, using telephone or two-way radio. May locate site of stranded vehicle, using maps. May maintain file of road service cards.

DOT No. 239.367-022. This job is classified as light work under the DOT. Id. Plaintiff's description of his work for AAA (i.e., the American Automobile Association, an automobile club that offers roadside assistance services), that he would answer telephone calls in a dispatch center, send tow truck drivers to customers, and make sure that the drivers arrived, closely mirrors the Receiver-Dispatcher job described at DOT No. 239.367-022. The definition provided at DOT No. 239.367-022 is also much closure to how plaintiff described his job duties than DOT No. 249.167-014. Specifically, plaintiff did not state that he assigned vehicles and drivers for the conveyance of freight or passengers according to factors such as length and purpose of trip, freight or passenger requirements, and preferences of users; that he conferred with customers to expedite or locate missing, misrouted, delayed or damaged merchandise; that he maintained records concerning mileage, fuel used, repairs made, or other expenses; or that he assigned to drivers helpers or equipment such as handtrucks, dollies, and blankets, which are all duties required in DOT No. 249.167-014. Accordingly, the vocational expert and the ALJ incorrectly characterized plaintiff's past dispatcher work, and thus the DOT description relied on by the vocational expert and the ALJ in determining the job duties and exertional capacities required of plaintiff's dispatcher work is inapplicable. See Villa, 797 F.2d at 798. As such, the ALJ's conclusion that plaintiff could perform his past dispatcher work -- which the ALJ reached by relying on a job that requires different duties than those described by plaintiff and that requires only sedentary work (as is required by the Dispatcher, Motor Vehicle job (DOT No. 249.167-014)), rather than light work (as is required by the Receiver-Dispatcher job (DOT No. 239.367-022)) -- is not supported by substantial evidence. See Pinto, 249 F.3d at 844 (although the claimant has the burden of proof at step four, "the ALJ still has a duty to make the requisite factual findings to support his conclusion" as to whether the claimant can perform his past relevant work); see 20 C.F.R. §§ 404.1520, 416.920. See also, e.g., Prieto v. Astrue, 2008 WL 4196640, at *6 (C.D. Cal. Sept. 3, 2008) (reversing and remanding the ALJ's step four finding that plaintiff could perform past relevant work, where the ALJ relied on a job defined in the DOT that involved a lighter exertional level and different job duties than plaintiff's description of his past work); Rawlings v. Astrue, 318 Fed.Appx. 593, 595 (9th Cir. 2009) (reversing and remanding ALJ's decision that plaintiff could perform his past work, where the ALJ erred in relying on the vocational expert's testimony that incorrectly characterized plaintiff's past work under the DOT) (citable for its persuasive value pursuant to Ninth Circuit Rule 36-3).

At the same time, however, the Court cannot conclude, as plaintiff urges [JS at 11], that a reversal of the ALJ's decision for an award of benefits is called for here.

"[W]hen the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," it is appropriate for a court to reverse an ALJ's decision and order the payment of benefits. By contrast, "[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard," a case should be remanded to the Commissioner for the further development of the evidence.

Hartnett v. Apfel, 21 F.Supp.2d 217, 221 (E.D.N.Y. 1998) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). Here, the ALJ erred in relying on the vocational expert's testimony that plaintiff could perform his past dispatcher work because the vocational expert relied on a DOT job description that did not adequately describe plaintiff's past work. That error, however, does not preclude the possibility that the ALJ could have properly found plaintiff able to perform his past work if the ALJ and the vocational expert had relied on a DOT job description that accurately describes plaintiff's dispatcher work -- i.e., DOT No. 239.367-022.*fn9 Accordingly, the Court finds remand and further development of the evidence necessary on this issue. See Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999) (remanding the ALJ's decision for failing to properly identify a DOT job that represented plaintiff's past work, but noting that "the ALJ's decision may not change after properly considering" plaintiff's ability to perform his past relevant work); Tingle, 627 F.Supp. at 545 (remanding for a factual determination as to whether plaintiff's job duties fit the job title relied on by the ALJ, and instructing that "[i]f it is found that Plaintiff's work included duties not included in the [job] description ... [relied on by the ALJ], then the Secretary should further determine whether Plaintiff's former work was in fact sedentary in nature and thus within his residual functional capacity.").

VI.

REMAND FOR FURTHER PROCEEDINGS

As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate in order for the ALJ to reconsider whether plaintiff is able to perform his past relevant work. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.

Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.

This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.


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